Myers-Sherman Co.

National Labor Relations Board - Board Decisions

Dec 3, 1946

71 N.L.R.B. 910 (N.L.R.B. 1946)

i
In the Matter of THE MYERS -SHERMAN COMPANY , EMPLOYER and
DISTRICT 50, UMWA, AFL, PETITIONER
Case No. 13-1t'-3787.-Decided December 3, 1946
Mr. E. M. Davis, of Streator, Ill., and Mr. T. C. Kammholz, of
Chicago, Ill., for the Employer.
Mr. Joseph Marchesi, of Peru, Ill., for the Petitioner.
Mr. Alvin Walling, of Streator, Ill., for the Independent.
Mr. P. L. Siemiller, of Chicago, Ill., for the Machinists.
Mr. Samuel G. Hamilton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Streator,
Illinois, on August 16, 1946, before Robert T. Drake, hearing officer.
The hearing officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Myers-Sherman Company is an Ohio corporation with its sole
office and plant at Streator, Illinois. It is there engaged in the manu-
facture of milking machines, hammer mills, and molasses feed impreg-
nators. For this purpose it purchased during the year 1946 in excess
of $200,000 worth of raw materials, consisting of steel iron castings,
nickel silver castings, oax lumber and skids, more than 20 percent of
which was shipped from points outside the State of Illinois. During
the same period the Employer sold in excess of $850,000 worth of
finished products, more than 80 percent of which was shipped to points
outside the State.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
71 N. L. R. B., No. 146.
910
THE MYERS -SHERMAN COMPANY
II. THE ORGANIZATIONS INVOLVED
911
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
International Association of Machinists , Lodge 1239 , herein called
the Machinists , is ti, labor organization , claiming to represent employees
of the Employer.
Independent Metal Workers Union , herein called the Independent,
is an unaffiliated labor organization , claiming to represent employees
of the Employer.'
III. TILE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the Peti-
tioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. Ti I E APPROPRIATE UNIT
The parties are generally in agreement that the appropriate unit
should consist of all production and maintenance employees, including
the watchman, but excluding all office and clerical employees, and all
supervisory employees. There exists, however, a dispute with respect
to certain classifications which are fully discussed below :
Leadmen: The Petitioner desires their exclusion as supervisory em-
ployees. The Employer and the Machinists desire their inclusion.
The Independent does not state its position. Apparently these ein-
ployees work with, and perform work similar to that of, the men in
their respective groups. Although leadnlen may occasionally make
reports and recommendations concerning the conduct, efficiency, and
qualifications for a change In status of the employees in their groups,
no action is taken on such reports or recommendations without an inde-
I The Machinists and the Petitioner contend that the Independent is not a labor organ-
ization within the meaning of the Act and therefore has no standing in this proceeding
In support of its position, the Machinists argues that the Independent is not a functioning
union in that provision has not been made for dues and regular meetings. The Independ-
ent, although not yet complelc in its fprmal organization, was represented at the hearing
by its president, who testified that it was formed for the purpose of collective bargaining
with respect to wages, hours and woi king conditions, and that a president and secretary
had been elected The objections of the -Machinists are clearly diiected to internal mattei s
and not to the status of the Independent as a labor organization within the meaning of the
Act. It is clear that the Act piesciibes no particular forni of internal organization as
a preicgnisite to status as a labor organization We find that Independent is a labor
ci ganization within the meaning of Section 2 (5) of the Act Mutter of P I du Pont de
Ncmonri and Company, 63 N L It B 1357, -Latter of Industizal Collieizes Corporation,
d5 N L R B 6S3
7l7734-47-von 71 59
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pendent investigation and decision by the works manager.2 Since an
independent investigation follows any such recommendation by a lead-
man, it is clear , that leadmen do not have the authority "effectively" to
recommend changes in the status of employees . Accordingly, we are
of the opinion that they are not supervisory employees within the
meaning of our usual definition and we shall include them in the unit.3
Shipping department employees : The Machinists and the Employer
desire their exclusion ; the Petitioner and the Independent do not state
their position . These employees, including the leadman,4 spend more
than 90 percent of their time physically handling incoming and out-
going shipments of raw materials and finished products. The
remainder of their time is spent in clerical work.5 We shall include
them in the appropriate bargaining unit.
The cost accountant and the stock control employee : The Petitioner,
the Machinists , and the Independent desire their exclusion , whereas
the Employer would include then. These employees work under the
direct supervision of the works manager, who is also the presidents
of the Employer. They are sons of the vice president ' of the
Employer, who is in charge of the hiring of employees . They work
in the shop and tool check rooms in the warehouse . Apparently they
spend much of their time ni°clerical work and the balance of their
time in work closely related to production . The cost accountants has
a desk in the toolroom . He is responsible for the checking in and out
of small tools . These duties occupy approximately 50 percent of his
time. The stock control employee 9 keeps the production employees
advised as to the supply situation, and the purchasing agent advised
as to the material that is required to be ordered . His duties relate
directly to the production operations , the flow and control of material,
and inventory problems . Although their duties are in part similar to
factory clericals , whom we frequently include in a production and
maintenance unit, we are of the opinion that by virtue of their relation-
ship to the vice president of the Employer, who is one of its active
2 The works manager apparently is in daily contact and well acquainted with all em-
plovecs in the shop It appeals that most of the employees discharged in the past have
been discharged by him w ithout consultation or recommendation
3 Matter of Kltcintat Pine Box Co and T. V. Wilkins Co , 65 N. L R. B 1201 ; Matter
of The Toledo Edison company, 63 N L. R B. 217.
4 James Walsh.
s Prior to July 13, 1946, there were four female employees in the shipping depaitment
at least one of whom performed a substantial amount of clerical work Three of these
employees were discharged on July 13, and the remaining female employee now works
in the machine shop The greater pact of the clerical work formerly performed by these
female employees will be transferred to the Employer's office when this clerical work is
resumed
C R L Sherman, who acts also as general superintendent of the plant.
7 R G Myers
8 Clarence Myers
John Myers.
THE MYERS-SHERMAN COMPANY 913
executives, their interests are sufficiently distinguished from those of
the other employees to warrant their exclusion from the unit.10
We find that all production and maintenance employees of the
Employer, including watchmen, leadmen, and shipping department
employees, but excluding office and clerical employees, the cost account-
ant, the stock control employee, executives, superintendents, foremen,
and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the
employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction.
The Machinists contends that the Independent should be denied a
place on the ballot for the reason that it is not a functioning labor
organization within the meaning of the Act. We find this contention
to be without merit.ll
Although the Petitioner contends that the Machinists and the Inde-
pendent have not shown enough interest in this proceeding to be
allowed a place on the ballot, we are satisfied that the showings of
the Machinists and the Independent warrant their participation in
the election.
The Petitioner urges that 34 employees who were discharged on or
before July 15, 1946, be allowed to vote. Although the Petitioner
does not specifically allege that these discharges were made by the
Employer in order to discourage union activity, it in effect questions
the good faith of the Employer's claim that they were made necessary
by a shortage of materials, and implies that the decision to discharge
these employees was not reached until, and was influenced by, the
receipt of information of the union membership of the employees
affected. However, no charge has been filed by the Petitioner alleging
a violation of Section 8 (3) of the Act, and the Employer in effect
denies the implication that the discharges were repugnant to the Act.
In these circumstances, we are of the opinion that the 34 employees,
are not eligible to vote in the election.
10 Matter of Louis Weinberg Associates, Incorporated , 13 N L R. B 66. See Matter of
Troy Reining Corporation, 70 N L R. B. 1191. Cf Matter of O. U. Hofmann, et at,
55 N L. R B 683; Matter of Parkers Brass Foundry, 63 N. L R. B 1238; Matter of
.Shetby F. Cason, 69 N. L. R. B. 523.
11 See Section II, supra.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with The Myers-Sherman Com-
pany, Streator, Illinois, an election by secret ballot shall be conducted
as early as possible, but not later than thirty (30) days from the date
of this Direction, under the direction and supervision of the Regional
Director for the Thirteenth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Sections 203.55
and 203.56, of National Labor Relations Board Rules and Regula-
tions-Series 4, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off, and including employees in the
armed forces of the United States who present themselves in person
at the polls, but excluding those employees who have since quit. or been
discharged for cause and have not been rehired or reinstated prior to
the date of the election, to determine whether they desire to be repre-
sented by District 50, UMWA, AFL. or by International Association
of Machinists, Lodge 1239, or by Independent Metal Workers Union
#1, for the purposes -of collective bargaining, or by none of these
organizations.